Zambrero store ordered to pay worker compensation after firing her over penalty rates and saying she looked like a “homeless person”

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A Zambrero franchisee has been ordered to pay a former worker $2000 in compensation after he fired her on the spot when she and her mother went to speak with him about a company email he sent singling out her performance.

The email in question was sent to other staff members the week after the worker had asked if she would be paid penalty rates to work on Anzac Day.

The employee lodged unfair dismissal proceedings with the Fair Work Commission after being dismissed from her part-time role as a fast food server in May.

In April this year, the worker was rostered on to work at Zambrero Victoria Park for April 25, 27 and 29.

The commission heard evidence that the worker asked her boss whether she would be receiving penalty rates for the shift worked on April 25, the Anzac Day public holiday, but was informed the business would only be paying the “normal rate for all public holidays”, and that anyone not happy with this could have their shift taken by someone else.

The worker completed her Anzac Day shift but was not paid public holiday loading rates. The Commission heard that on the same day the payslip for that pay cycle was sent, the employer sent an email to all staff that the worker felt singled her out for poor performance.

In an email seen by the Commission, the franchise operator said he had issues with “almost everyone” on staff, and then mentioned the worker by name and said “your uniform was incomplete all week last week. Also coming to work on time is important if your shift starts at 12:00 you need to be ready to work at 12 PM”.

The worker arrived early for her shift on the day that the email was sent, and approached the franchise owner with her mother to discuss penalty rates and the email.

The Commission was told that when the employee’s mother asked why she wasn’t paid penalty rates for Anzac Day, the employer said “it was his choice” what he paid.

The worker asked him why she was singled out in the email to other staff for her behaviour, and the Commission heard his reply was “because she had not worn her cap the week before and he said she looked like a homeless person”.

In the course of this conversation, the worker said the franchise owner turned to her and said, “you’re fired, you can leave now”.

The employer provided evidence to the Commission that the staff member was dismissed because of repeatedly not complying with work rules, putting the business and customer’s health at risk, and “rising her voice at the employer [sic]”.

However, in considering the case, Fair Work Commissioner Bruce Williams said that the concerns raised by the worker during the meeting with the employer and her mother were “quite reasonable”.

“I am not satisfied that there were valid reasons to dismiss,” the commissioner found.

He said even if there were valid concerns about the worker’s performance and presentation, these had not been formally communicated to her at any point, except “in the most general sense” through staff-wide emails.

He ordered Zambrero Victoria Park to pay the worker $2,184 in compensation, the equivalent of seven weeks’ pay.

Zambrero general manager Bianca Azzopardi told SmartCompany this morning that the Zambrero support office has “knowledge of the dismissal case involving a franchise partner and the previous employee in question”.

“In this case and with all situations, we continually provide our franchise partners with advice and guidance to consider in regards to the operation of their businesses.

“Procedures and systems are also put in place across the group for all aspects of staff management and employee performance that are not only aligned to national employment standards but go above and beyond to create a positive workplace culture that makes Zambrero an enjoyable place to be and be a part of.”

SmartCompany attempted to contact the franchisee but did not receive a response prior to publication. The staff member could not be contacted for comment prior to publication.

Regulators watching businesses closely on communication and penalty rates

Workplace lawyer Peter Vitale says he believes the claims made about the employer in this case are the exception among business operators.

I don’t think that the vast majority of employers … would openly single out an employee,” he says.

Businesses need to stay vigilant when communicating with staff about performance, he says, and be careful that any mention they make to other employees about a worker does not have the potential to cause disputes down the line.

“The first obvious thing here is that singling someone out in that way might constitute part of a pattern of bullying behaviour — that’s something employers need to be very careful about.” 

Vitale warns businesses that regulators don’t take a kind view of employers if they are suspected of knowing their obligations but breaching these. While he hopes the claims made about the employer in this case are only a concern for “a minority” of businesses, he says the case does suggest not all business owners communicate with staff in an appropriate way.

“I think this demonstrates the employer may need to brush up on a lot of things, including his communication skills,” he says.

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helma Parkin
helma Parkin
3 years ago

She’s only casual and comes in late and doesn’t dress right and gets 7 weeks compo. Why?? seems a bid overboard.

Taylor
Taylor
3 years ago
Reply to  helma Parkin

Helma, has it occured to you that there could be a possible explanation for her lateness and why she can’t dress right? Besides, which dickhead employed her from day one? Did he not see how she dressed? She must have left some impression to have been employed, or was it the ‘ she looks dumb and shes okay, I just need to employ someone immediately?. Give it a rest, if what you say is the case, im pretty sure it would not have gone in her favor. First of all the employer got what he deserved from the sounds of it. Fancy emailing the whole department regarding employee conversations, do you consider that ethical and professional? You sound like someone that should go and work with that jerk.

Justin Tyme
Justin Tyme
3 years ago

Again the commissioner is out of touch with reality. A Service business survives on service. If any employee does not provide the necessary service they are asking for payment fraudulently.
If an employee compromises the companies license to operate, I.e. not wearing the free issue appropriate and MANDATORY health and safety apparel, then why can’t the employer be compensated for that breach by the employee or dismiss that employee? This kind of penalty should apply both ways.
If an employee turns up late for work they should be sent home with a warning. They expect the company to cover for the temporary absence so they should not expect to be paid for a permenant absence.
Unbelievable decisions by FWO reinforce decisions not to employ.

bezbox
bezbox
3 years ago
Reply to  Justin Tyme

Gee mate – you have drawn a long bow there. Nothing in the article mentions breach of mandatory health and safety apparel (a hat isn’t one – a hair net would be) or that the company licence was compromised. I notice you have no problem with someone working without getting appropriate penalty rates as you didn’t comment on that aspect. Muppets like you add nothing!

DavidFilmart
3 years ago

Reminds me of an employer who was informed of what a law required, in a financial area. Their response was not “Thanks for reminding me” but “You are the only one who is complaining” – another employer who may have to learn the hard way.

Cazarelly
Cazarelly
3 years ago

Employers can have discussions with employees in regard to their performance, tardiness etc and warnings can be given that may utlimately lead to dismissal. If you feel an employee is not earning their money, that’s a matter to address. It’s not an excuse to not pay penalty rates to any of your employees.